DATE:  April 14, 1995
CASE NO. 92-ERA-44


IN THE MATTER OF

MICHAEL W. HOLDEN,

          COMPLAINANT,

     v.

GULF STATES UTILITIES,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                        DECISION AND REMAND ORDER 

     Complainant Michael W. Holden alleges that Respondent Gulf
States Utilities (Gulf States) violated the employee protection
provision of the Energy Reorganization Act of 1974 (ERA), 
42 U.S.C.  5851 (1988), when it discharged him and blacklisted
him from employment at other nuclear power plants.  Gulf States
moved to dismiss the complaint, or in the alternative, for summary
judgment because the complaint was not timely as to the discharge
and most of the alleged acts of blacklisting. [1]   Gulf States
argued that it was entitled to judgment on the merits regarding 
the alleged incident of blacklisting that occurred within 30 days
of the filing of the complaint.   
     In a Recommended Order (R.O.), the Administrative Law Judge
(ALJ) granted Gulf States' motion to dismiss and for summary
judgment.  The ALJ's recommendation is rejected, and I remand
this complaint to the ALJ for further proceedings, including a
hearing.
                          FACTUAL BACKGROUND [2] 
     Holden began work in September 1990 as a contract employee
of S&W Technical Services (S&W) at the River Bend Nuclear Power 
[PAGE 2]
Station operated by Gulf States.  After observing several safety
problems at the station, Holden compiled documents to be used to
support the internal safety complaint of a co-worker, night shift
worker Charles Patrick.  After reviewing the documents, Patrick
placed them in an envelope addressed to Holden and gave the
envelope to another worker for transport to day shift worker
Holden.
     The employee transporting the envelope instead gave it to
supervisor Rodger Barnes, who removed from it some papers that
had been taken from his desk without permission.  Within 24
hours, Holden was notified that his position was terminated,
purportedly because his performance was not satisfactory.
     The next day, November 16, 1990, Holden had a routine "exit
interview" for departing employees.  Holden complained to
employees in Gulf States' internal Quality Concerns Program (QCP)
that he was being discharged in retaliation for his role in
gathering documents to support the report of a safety violation. 
The QCP employee said that "nothing could be done" and his "hands
were tied." 
     Holden notified S&W representative Tom Roark that he desired
a new contract position in the nuclear industry.  After several
months of seeking, but not obtaining a position for Holden, Roark
confided to Holden that someone at Gulf States was telling
prospective employers not to hire Holden because he was a
troublemaker.  
      Holden filed a second complaint with Gulf States' QCP that
the company was blacklisting him from employment at other nuclear
plants.  Again, a QCP employee stated that without witnesses,
nothing could be done for Holden.
     Holden asked Roark to verify to the QCP that Gulf States
employees were blacklisting him.  Roark stated that he had spoken
in confidence and warned that unless Holden dropped his complaint
to the QCP, Roark would staple Holden's file shut and cease to
recommend him for employment in the nuclear industry.  Holden
promptly withdrew his second QCP complaint.
     Holden was unable to obtain work for a period of 18 months,
with the exception of a brief period when he worked as a
machinist, at half his usual salary, for a different contractor
at the River Bend station.  During that employment, a Gulf States
employee complained to the contractor and tried to get Holden
fired, although he was able to stay on until the end of the job.  
     Holden filed a third QCP complaint concerning alleged
blacklisting by Gulf States and again a QCP employee stated that
Holden did not have a case because he lacked witnesses.  In a
subsequent conversation with an employee of the Nuclear
Regulatory Commission (NRC), Holden learned about the
availability of filing a complaint under the ERA.

[PAGE 3]
     Holden submitted a complaint to the Department of Labor
alleging that Gulf States discharged and blacklisted him because
of his role in gathering documents to support a safety complaint
to the NRC.  The Department referred Holden to the local office
of its Wage and Hour Administration, where he filed a formal
complaint dated May 21, 1992.  
     Meanwhile, in April 1992, when Holden informed a Gulf States
QCP employee that he intended to file a complaint with the
Department of Labor, the employee replied that filing such a
complaint would not do any good because Holden had "blown the
statute of limitations."   
                 OUTSTANDING MOTIONS CONCERNING THE RECORD
     The Gilbert Reports
     Gulf States contracted with Fred Gilbert, its former head of
security, to perform an independent investigation of two of
Holden's quality concerns.  Gilbert died after he submitted the
two reports ("Gilbert reports").  Citing the privilege afforded
to self-critical analysis, Gulf States resisted producing the
Gilbert reports pursuant to Holden's discovery request.  The ALJ
ordered Gulf States to produce the reports, March 11, 1993 Order
Compelling Production of Documents, but Gulf States continued to
resist the production order.
     At Gulf States' request, the ALJ issued a protective order
requiring that Holden and his counsel shall not disclose any
information in the Gilbert reports except for purposes of a
hearing on this complaint and only to specified persons.  
March 24, 1993 Protective Order Governing Non-disclosure of
Confidential Information and Documents.  Holden asked the ALJ to
reconsider the protective order because it would preclude him
from providing any of the information in the reports to the NRC. 
In response, Gulf States moved to modify the protective order to
permit Holden to share the information contained in the reports
with the NRC, although he could not give the NRC copies of the
reports or portions of them.    
     The ALJ issued the R.O. without ruling on Gulf States'
request to modify the protective order. [3]   In a subsequent
order, the ALJ found that his jurisdiction in this case ceased
when he transmitted his recommended order to the Secretary and he
referred Gulf States' request for modification to the Secretary. 
May 10, 1993 Notice. 
     Gulf States filed with the Secretary an emergency appeal
from the ALJ's Notice, an appeal from the ALJ's order compelling
production of the Gilbert reports, and a motion to modify the
protective order.  Gulf States argues that the privilege for
self-critical analysis should prevent production of the reports. 
     Holden requested that the Secretary withdraw the protective
order in its entirety.  Complainant's June 8, 1993 Response to 
[PAGE 4]
Gulf States' Motions.  Holden agrees to redact the names of
witnesses from the reports and wishes to provide the redacted
reports to the NRC, the Congress, and the public.  Holden also
has moved to reopen the record to admit the Gilbert reports into
evidence.  Complainant's June 11, 1993 Motion. 
     The question whether an ALJ retains jurisdiction in an ERA
case to modify a protective order after he has transmitted a
recommended decision to the Secretary is one of first
impression.  In an analogous situation, a federal district
court judge retains jurisdiction to modify a protective order,
for as long as it is in effect, even after the merits of the
underlying case have been determined either by compromise of the
parties or by the ruling of an appellate court.  Ex parte
Uppercu, 239 U.S. 435, 440 (1915); Public Citizen v.
Liggett Group, Inc., 858 F.2d 775, 781-782 (1st Cir. 1988),
cert. denied, 488 U.S. 1030 (1989); FDIC v. Ernst &
Ernst, 677 F.2d 230 (2d Cir. 1982).  The courts reason that
revisiting the terms of a protective order would not undermine
the jurisdiction asserted by an appellate court over the merits
of the case.
     Likewise, I find that in this case the ALJ retained
jurisdiction to modify the protective order, even after he
transmitted his recommended decision to the Secretary, because
the modification would not alter the terms of the ALJ's
recommended decision pending my review. [4]   Indeed, an ALJ's
jurisdiction over a protective order continues even after the
Secretary has issued a final decision, for so long as the
protective order is in effect.
     I will rule on the various motions concerning the reports.
 See 5 U.S.C.  557(b) ("On ... review of the initial
decision, the agency has all the powers which it would have in
making the initial decision. . . .").
     The Supreme Court does not favor expansive application of
privileges from discovery, University of Pennsylvania
v. EEOC, 493 U.S. 182, 189 (1990), and the lower courts
recognize a very limited privilege for self-critical analysis. 
Gulf States acknowledges that the privilege applies only
when "the public interest in maintaining confidentiality
outweighs the requesting party's need for the information."  Gulf
States Appeal from Order Compelling Production of Documents at
10.  For example, in Bredice v. Doctors Hospital,
Inc., 50 F.R.D. 249, 251 (D.D.C. 1970), aff'd, 479 F.2d 920
(D.C. Cir. 1973), the privilege prevented discovery of the
records of a hospital staff investigation committee because of
the "enormous public interest in having those staff meetings held
on a confidential basis so that the flow of ideas and advice can
continue unimpeded."  

     I find that in this case the overwhelming public
interest in 
[PAGE 5]
protecting whistleblowers who act to promote nuclear power safety
outweighs Gulf States' interest in keeping the Gilbert reports
confidential.  Since Gulf States offered to produce the reports
to an investigator charged with determining compliance with the
ERA, it will not harm the company unduly to produce the reports
to an ERA complainant.  Moreover, Gulf States conducted an
additional investigation into the subject matter covered by the
Gilbert reports and submitted its new report to the NRC. 
Consequently, Gulf States' stake in the confidentiality of the
Gilbert reports has diminished.  Accordingly, I affirm the 
March 11, 1993 order requiring production of the Gilbert reports.
     Turning to the propriety of the protective order, the courts
recognize that litigants "have general first amendment freedoms
with regard to information gained through discovery and that,
absent a valid court order to the contrary, they are free to
disseminate the information as they see fit." [5]  Public
Citizen, 858 F.2d at 780; see Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 31-36 (1984) and Oklahoma
Hospital Ass'n v. Oklahoma Publishing Co., 748 F.2d
1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905
(1985).  As Gulf States recognizes, at the very least Holden must
be permitted to share information in the Gilbert reports with the
NRC.  See, e.g., Brown v. Holmes & Narver,
Inc., Case No. 90-ERA-26, Final Order Approving Settlement
and Dismissing Complaint, May 11, 1994, slip op. at 3-4
(provisions of an agreement settling an ERA case void as contrary
to public policy to the extent they restrict the complainant from
providing information to the NRC and other government agencies).
     To comport with the First Amendment, protective orders may
not restrict the dissemination of information obtained from other
sources rather than through discovery.  Seattle Times, 467
U.S. at 34; Anderson v. Cryovac, Inc., 805 F.2d 1, 14 (1st
Cir. 1986).  Since Holden obtained the reports voluntarily from
Mrs. Gilbert rather than through discovery, [6]  the protective
order may not reach the reports in Holden's possession.
     Accordingly, I shall lift the protective order as to the
copies of the reports produced by Mrs. Gilbert.  To protect
individuals' privacy, Gulf States shall redact the names and
identifying information of employees from the reports prior to
disseminating them.  See Comp. June 8, 1993 Response at 9 n.7 and
June 11, 1993 Motion.  In addition, since the reports have been
filed with me, they are subject to the Freedom of Information 
Act.  As set out below, I will accord Gulf States all the
protection allowed under the FOIA.
     Holden requests that the Gilbert reports be made a part of
the record.  In view of Gulf States' failure to produce the
reports pursuant to discovery, the reports were not available
prior to the time the ALJ granted the motion to dismiss and for 
[PAGE 6]
summary judgment.  The reports mention contacts between Gulf
States and GE employees, which is the subject of the allegation
on which the ALJ granted summary judgment.  Had the reports
timely been produced pursuant to discovery, they would have been
available for the purpose of opposing the motion for summary
judgment.  Accordingly, I will admit them into the record for the
limited purpose of determining whether there are genuine material
issues of fact that would preclude summary judgment. [7]   On the
issue of admitting the reports into evidence, I will rely on the
ALJ's judgment as the evidence unfolds at the hearing.  
  Other Motions
     Gulf States moves to strike Complainant's opening brief on
the ground that the type is small and evades the page limitation
in the Order Establishing Briefing Schedule, which did not
specify a type size. [8]   The motion is denied and all of
Complainant's briefs to the Secretary are part of the official
record.
     Holden moved to supplement the record with the response Gulf
States filed with the NRC's Office of Investigations concerning
its investigation of Holden's allegations in this case.  Gulf
States opposes the motion.  Gulf States argues that if its
response to the NRC is included in the record, the NRC's final
report on the allegations should also be included.  Both Gulf
States' response and the NRC's report are made part of the record
in this case.   
                                DISCUSSION
     Timeliness
     The ALJ found that the complaint was untimely as to Holden's
discharge and most of the alleged incidents of blacklisting.  He
further found that Holden timely complained of one alleged
incident of blacklisting from a refueling technician job with
General Electric Company (GE) because it occurred within 30 days
of the complaint he filed in May 1992.  R.O. at 3.  
     Holden argues that, under the continuing violation theory,
the complaint was timely as to all of the adverse actions.  The
Secretary has held that the timeliness of a claim may be
preserved under the continuing violation theory "where there is
an allegation of a course of related discriminatory conduct and
the charge is filed within thirty days of the last discriminatory
act."  Garn v. Benchmark Technologies, Case No. 88-ERA-21,
Dec. and Order of Remand, Sept. 25, 1990, slip op. at 6;
Egenrieder v. Metropolitan Edison Co./G.P.U., Case
No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4.  In
Egenrieder, slip op. 
at 6, the Secretary found that blacklisting, by its nature, is 
a continuing course of conduct and may constitute a continuing
violation if it is based upon an employee's protected activity.
     The ALJ stated that if Holden had no knowledge of Gulf 
[PAGE 7]
States' alleged blacklisting until about the time he filed his
complaint, the continuing violation theory would make all his
blacklisting claims timely.  The judge found, however, that the
continuing violation theory did not apply because in early 1991
Roark gave Holden reason to suspect that blacklisting was
occurring, but Holden did not file the complaint until a year
later.  The ALJ cited as support Doyle v. Alabama Power
Co., Case No. 87-ERA-43, Final Dec. and Ord., Sept. 29, 1989,
slip op. at 2, aff'd, Doyle v. Secretary of Labor, 949
F.2d 1161 (11th Cir. 1991), cert. denied, 121 L.Ed. 2d 162
(Oct. 14, 1992), in which the former Secretary found that the
continuing violation theory did not apply to a blacklisting claim
because no alleged discriminatory act occurred within 30 days of
the filing of the complaint.  Doyle is inapposite here
because the alleged blacklisting from the GE job occurred within
30 days of the filing of Holden's May 1992 complaint.   Under
the continuing violation theory outlined in Garn and
Egenrieder, all of Holden's blacklisting claims are timely
and he is entitled to a hearing on those claims.  

     The discharge, however, was not similar in subject matter
and was not a recurring event.  Rather, the discharge had: 
     the degree of permanence which should trigger an
     employee's awareness of and duty to assert his or her
     rights, or which should indicate to the employee that
     the continued existence of the adverse consequences of
     the act is to be expected without being dependent on a
     continuing intent to discriminate[.]

Berry v. Board of Supervisors of L.S.U., 715 F.2d 971,
981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). 
See also Garn, slip op. at 6 (continuing violation
theory does not apply to consummated acts such as discharge).  I
therefore find that the continuing violation theory does not
apply to Holden's discharge.       In considering separately
whether the complaint was timely concerning the discharge, the
courts recognize three bases for equitable tolling of the
limitation period in whistleblower protection statutes such as
the ERA.  See, e.g., School District of
Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.
1981).  One of the bases is when "the defendant has actively
misled the plaintiff respecting the cause of action."  
Id.  
     Holden alleges that QCP personnel affirmatively lied to him
when he asked them about possible recourse concerning his
discharge and on two later occasions when he complained about
blacklisting.  Holden states:  
     I specifically asked a Mr. Spranger . . . from Quality
     Concerns what redress was available for me to pursue my
     complaints against GSU, either internally through 
[PAGE 8]
Quality Concerns or others.  I was told that "nothing could be
done" and that Quality Concerns' "hands were tied" in connection
with any claims I had against GSU.

Holden Affidavit (Aff.) at p. 2, attached to Comp. Response to
Motion to Dismiss, etc.  Holden emphasizes that in 1992 a QCP
employee told him that "it wouldn't do [him] any good now" to
pursue his complaint about discriminatory discharge and
blacklisting because he had "blown the statute of limitations." 
Holden Aff. at p. 4.  He argues that the limitation period was
equitably tolled because Gulf States actively misled him about
the availability of filing an ERA complaint.  Comp. Opening Br.
at 16-17. 
     Ignorance of the law alone is not sufficient to warrant
equitable tolling of the limitations period.  Rose v.
Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Kang v.
Department of Veterans Affairs Medical Center, Case No. 92-
ERA-31, Final Dec. and Ord., Feb. 14, 1994, slip op. at 4,
petition for review pending, No. 
94-4057 (2d Cir. filed Apr. 12, 1994).  However, equitable
tolling is justified when an employer's complaint handling
process causes confusion that deters a complainant from timely
filing a complaint.  Larry v. The Detroit Edison Co., Case
No. 86-ERA-32, Sec. Dec. and Ord., June 28, 1991, slip op. at 17-
19,  aff'd in relevant part sub nom. The Detroit Edison Co. v.
Secretary, U.S. Dep't of Labor, No. 91-3737 (6th Cir. Apr.
17, 1992).
     If contract employees such as Holden were told that the QCP
program either was the sole or the best means to report safety
concerns, this case would be similar to Larry,
where the limitation period was equitably tolled because of the
confusing nature of the employer's process for handling
complaints.  On the other hand, if workers were told that the QCP
program was one means to address safety issues in addition to
other avenues of redress, it would be difficult to show that Gulf
States affirmatively misled Holden simply by not informing him of
his rights under the ERA.  A remand will afford the parties the
opportunity to submit evidence concerning whether equitable
tolling is justified as to the timeliness of the allegation
concerning discharge.  See, e.g., McGough v. United
States Navy, RIOCC, Case Nos. 86-ERA-18-20, Remand
Dec. and Ord., June 30, 1988, slip op. at 9 (remand for hearing
where arguments concerning equitable tolling raise significant
factual issues requiring resolution through testimony and
presentation of evidence).  
     Summary Judgment 
     The ALJ granted summary judgment to Gulf States on the 
blacklisting allegation concerning a position with GE.  A motion 
[PAGE 9]
for summary judgment in an ERA case is governed by 18 C.F.R. 
§ 18.40 and 18.41.  Trieber v. Tennessee Valley
Authority, Case No. 87-ERA-25, Sec. Dec. and Ord., Sept. 9,
1993, slip op. at 7.  A party opposing a motion for summary
judgment "must set forth specific facts showing that there is a
genuine issue of fact for hearing."  19 C.F.R. § 18.40(c).
     In support of its motion, Gulf States submitted the
affidavit of Holden's supervisor, Barnes, who disavowed any
contact with GE concerning Holden's suitability for employment.
Aff. of Rodger Barnes at p. 4 par. 11.  A technical recruiter
employed by GE Nuclear Energy stated in an affidavit that
Holden's resume was on file and nothing in the company's files
indicated that anyone from GE communicated with any Gulf States
employee concerning Holden's suitability for employment.  Aff. of
Jennifer P. Cameron at p. 2 par. 3,4.  
     The ALJ found that Holden submitted no evidence to counter
the affidavits submitted by Gulf States.  However, the second
Gilbert report contains statements which, if found to be true,
show that Gulf States employees were blacklisting Holden.  
Holden was not able to submit the report to counter Gulf States'
affidavits because, notwithstanding diligent discovery efforts,
he obtained a copy outside the discovery process on the same day
that the ALJ granted summary judgment.  
     The second Gilbert report demonstrates that there are
genuine issues of material fact concerning alleged blacklisting
of Holden with GE.  Accordingly, the grant of summary judgment is
reversed, and Holden is entitled to a hearing on the final
incident of alleged blacklisting.
                                CONCLUSION 
      This case is REMANDED to the ALJ for further proceedings
consistent with this Order, including a hearing and a new
recommended decision on the complaint.
     SO ORDERED.


                              ROBERT B. REICH 
                              Secretary of Labor

Washington, D.C. 




[ENDNOTES]
           
[1] 
 The National Energy Policy Act of 1992, Pub. L. No. 102-486, 106
Stat. 2776, amended the employee protection provision of the ERA
to provide a 180-day limitation period for complaints filed on or
after its effective date, October 24, 1992.  Holden filed this
complaint in March and May 1992.  Therefore, the 30-day
limitation period applies in this case.

[2] 
 For purposes of the motion to dismiss, the allegations in the
complaint are accepted as true.  Garn v. Benchmark
Technologies, Case No. 88-ERA-21, Dec. and Ord. of Remand,
Sept. 25, 1990, slip op. at 2; Willy v. The Coastal Corp.,
Case No. 88-CAA-1, Dec. and Ord. of Remand, June 4, 1987, slip
op. at 3.

[3] 
 Holden obtained copies of the reports from Gilbert's widow on
April 22, 1993, the same day that the ALJ issued the R.O.  

[4] 
 I note that upon transmission of a recommended decision, an ALJ
loses jurisdiction to modify the recommended decision itself. 
See, e.g., Dutile v. Tighe Trucking, Inc.,
Case No. 93-STA-31, Remand Order, Mar. 16, 1995, slip op. at 3
(no authority for ALJ to revise terms of a recommended decision
pending before the Secretary).   

[5] 
 A district court judge has wide latitude to modify or lift a
protective order.  Public Citizen, 959 F.2d at 791;
Tavoulareas v. Washington Post Co., 737 F.2d 1170,
1172 (D.C. Cir. 1984).  In this case, on review of the order
entered by the ALJ, the Secretary similarly has wide latitude. 
5 U.S.C. § 557(b). 

[6] 
 Holden did not obtain the Gilbert reports through discovery from
Gulf States.  Mrs. Gilbert provided the reports to Holden with an
affidavit outlining a business records exception to the hearsay
rule.  As a non-party, Mrs. Gilbert was not subject to any of the
authority of the ALJ to compel production of the reports.  See
Malpass and Lewis v. General Electric Co., Case Nos. 85-ERA-
38 and 85-ERA-39, Final Dec. and Order, Mar. 1, 1994, slip op. at
21.  Therefore, the production of the reports to Holden was
voluntary and Holden effectively obtained the reports outside of
the discovery process.

[7] 
 As a part of the record in this case, the Gilbert reports will
be subject to the provisions of the Freedom of Information Act
(FOIA), 5 U.S.C. § 552 (1988).  Gulf States' request for a
protective order will be treated as a designation of confidential
commercial information.  I have placed a notice prominently
displayed in the record of this case directing that the
procedures in 29 C.F.R. § 70.26 be followed if a FOIA
request is received that encompasses the reports.  In that event,
the Department will notify Gulf States and afford it a reasonable
period of time to state its objections to disclosure.  The
Department will further notify Gulf States if a decision is made
to disclose the information.  See 29 C.F.R. § 70.26
(1994).